Justice Stevens Allows Chicago to Ban Spray Paint

Published: March 4, 1995

WASHINGTON, March 3—
A Supreme Court Justice today gave Chicago approval to start enforcing a ban on spray-paint sales within the city in an effort to curb graffiti vandalism.

The Justice, John Paul Stevens, turned down an emergency request from spray-paint makers and sellers who had sought to have enforcement of the city ordinance postponed until the full Supreme Court could consider a formal appeal.

Chicago's City Council approved the ordinance in 1992, but it has never been enforced. Judge Marvin E. Aspen of Federal District Court declared the ordinance unconstitutional in 1993, ruling that it interfered with interstate commerce.

During a six-day trial, expert witnesses testified that most of the spray paint sold in Chicago was manufactured outside Illinois. Judge Aspen, on being told that tens of millions of dollars in sales would be lost, also concluded that the ban would have "no deterrent effect whatsoever" on graffiti.

The United States Court of Appeals for the Seventh Circuit reversed that ruling last month, saying the judge had used too stringent a legal standard in determining whether the ban unlawfully burdened interstate commerce.

Judge Aspen had relied on a 1970 Supreme Court decision in weighing the local benefits of the proposed ban against the effect on out-of-state commerce. But the appeals court ruled that the Chicago ordinance was constitutional because it did not single out out-of-state businesses for adverse treatment.

Such laws should be judged by the balancing test required under the 1970 Supreme Court test, the appeals court ruled, but under a less stringent standard. It said laws like the Chicago ordinance should be upheld if they have a "rational basis." Under that standard, few laws are declared invalid.

"Perhaps Chicago's City Council has used too broad a brush," the court ruled. "If so, the law-abiding residents of Chicago will be the losers, for they forfeit the benefits of spray paint without enjoying much, if any, reduction in vandalism."